Okko Behrends

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Okko Behrends (born February 27, 1939 in Norden (Ostfriesland) ) is a German legal historian and professor emeritus at the University of Göttingen .


Okko Behrends, grandson of Onno Behrends , studied law in Freiburg, Geneva, Munich and Göttingen, received his doctorate from Franz Wieacker at Göttingen University in 1967 , completed his habilitation there in 1972 and was - as the successor of Franz Wieacker - at the same university from 1975 to his retirement in 2007 professor of civil law, Roman law and modern history of private law. Since 1982 he has been a full member of the Göttingen Academy of Sciences . From 1986 to 1988 he was Vice President of Göttingen University, and in 2003 and 2009 Andrew Dickson White Professor-at-Large at Cornell University in Ithaca. Since 2005 he has been Honorary Professor at the East China University of Politics and Law in Shanghai, in 2009 he received an honorary doctorate from Stockholm University and in 2010 he was Bok Visiting International Professor at the University of Pennsylvania (Law School). He has also taught at the universities of Rome (“La Sapienza”), Naples (“Federico II”), Bordeaux (“Montesquieu”) and Nanjing.


Okko Behrends' main research interests are the influences of Greek philosophy in Roman law, the historical school of law and German law of the 19th century. His research results fundamentally deviate from the view of the current Romance studies, which is characterized by late Romantic Free Law and rejects any systematics, in particular from the prevailing conviction today that Roman law is the casuistic precipitate of a theory-free practice based only on supposedly "correct" decisions .

As for the early Roman period, according to Behrends, the foundation of all law was the augural religion . The peace of the gods ( pax deum ) necessary for all "blessings" required legal peace, which was secured by a cosmically legitimized border order of the settlement area, a very old lunar calendar that had to be observed for all legal settlements, an ever-present jurisdiction and a periodic census. At the center of this agrarian legal concept was the "vindication model" that safeguards freedom, family and property, the emanations of which are traditionally referred to as " ex iure quiritium " because the model is based on the formation of an alliance of several agricultural settlements ( gentes ) with a cult center on the Quirinal, a central place of the later Rome. The Twelve Tables Act (from 451/450 BC) preserved this legal concept, but at the same time developed it further under the influence of the changing economic conditions of the “plebeian” trade and market city of Rome. The experts responsible for the further training of the law were the urban pontifices , whose name was derived from the long only Tiber bridge in Rome, the pons sublicius ("Vindikationsmodell" 1991, "Bodenhoheit" 1992, "Garten" 2013).

At the beginning of the 3rd century the pontifical college, which was then opened to the plebeians by law, received the first Hellenistic legal theory, founded by Antisthenes and continued by the Stoa (Zenon). The first in the long series of pontifices that shaped the type of Hellenistic iurisconsultus was the plebeian Sempronius Sophus (σοφός) ( consul 304). According to this doctrine , what was the ius quiritium in Rome came into force as a civil right in historical times in all urban communities, as a special addition everywhere, but at the same time, if correctly interpreted, a universal ius civile (προσθήκη) to the continuing natural law ( ius naturale ), which was classified as the primary ius gentium in the ius civile (which distinguishes between general rules and rules reserved for the citizen) . The natural law regulates the behavior of people among one another, the added law, however, the permanent and formal rights assigned to them. The guiding values ​​of natural law until the middle of the 2nd century were the reliability of promises ( fides ) and the prohibition of willful harm ( dolus ). Under the influence of the teachings of the stoic philosopher Antipatros (Antipater) of Tarsus (d. 130/29 in Athens), the requirements of natural law were increased: the principle of trust ( bona fides ) had been introduced for legal transactions , and liability due to lack of care for offenses ( diligentia ) and extensive disclosure obligations of the seller recognized. In constitutional reality, the obligation, derived from natural law, to stand up for the interests of weaker people, supported by the leading lawyer of his time Publius Mucius Scaevola ( pontifex maximus, consul 133) - had the settlement policy of Tiberius Gracchus ( tribunus plebis 133) and, there it aroused the sharpest resistance on the part of the “vested interests”, leading to the beginning of the “Roman Revolution” that lasted more than a century (“Tiberius Gracchus” 1980, “Ius gentium antico” 2009, “Verwebte Fäden” 2013).

In Cicero's youth, aided by the Sullan Restoration (82 BC), a liberal-humanistic legal theory prevailed through a fundamentally redesigned edict, which gained a foothold in Rome as part of the rhetoric training influenced by the skeptical academy. The director of the Academy Philon of Larissa, who has been an exile in Rome since 88, assumed the role of the founder and preserver of law when he was the first to include the art of speaking in the school's curriculum, in a decisive approach to the sophistic tradition (Protagoras) assigned. The speaker had not only once convinced people to leave the natural state determined by violence in favor of a legal system, but also now as an ideal statesman has a duty to constantly strengthen them in this legal attitude. According to this legal theory, humans remain a living being driven by instincts of freedom, possession, mating and reproductive instincts, but which, through the establishment of a community, is domesticated not only through a comprehensive prohibition of violence, but above all through institutes (e.g. citizenship , Property, marriage, children) get a legal order. The four consensual agreements had established themselves as the superstructure above the pactum conventum (the peaceful mutual agreement) and the three formal agreements as the superstructure above the conventio (the unilateral agreement). Another important source of Procedure are the social ethical values: On them were based in factum (related to a past, present or future action) designed appeal of the Praetor. The literary center of this legal doctrine was the classic edict and the classic edict commentary written for it. This genre of work began with Servius Sulpicius Rufus, who, as a fellow student of Cicero, first became a speaker, but then a lawyer and dedicated his edict commentary to Brutus, the murderer of Caesar (“Die Geistige Mitte” 2008, “The Secret” 2007, “The Natural Freedom "2011).

The constitution of Augustus from the year 27 BC BC placed the "restored republic" under exceptional monarchical power, the most important legitimation of which - within the framework of the tradition of the Augural religion, which was consciously taken up with the name of Augustus - was the safeguarding of legal peace (the pax Augusta ). This “augural” point of view raised the auctoritas principis to the highest principle of the entire legal system. The constitutionally secured auctoritas principis also explains the appearance of the two schools of law of the principate, of which the Sabinians linked to the pre-classical tradition and the Proculians to the classical tradition. Both republican legal theories remained recognized, and consequently the leading representatives of both schools were empowered to develop the law through the institution of the ius respondendi ex auctoritate principis . Although this common source of legitimation initiated a convergence of the two philosophically shaped systems, it allowed an abundance of controversies and a permanent basic spiritual tension to persist (“Der Ort des Ius divinum” 2003, “Princeps legibus solutus” 2007, “The Republic and the Laws "2008).

Justinian's codification of Roman law adhered to the idea of ​​an imperial legal system and claimed to have eliminated all controversies between the two schools of law. His legal conception is in the tradition of Constantine: Christianity at that time could be used for religious legitimation and as a political and social support of the rule of the Roman emperors, because Roman law was given a firm place in the Christian communities even before Constantine. As long as the legal order, which comes from the Roman tradition, exists - so the idea matured in the imperial era with the abandonment of near expectation - the divine Providence would preserve the world. That is why Justinian codified Roman law with reference to a Trinity whose spiritual power created the law in an exclusively Roman historical course beginning with Romulus. This idea founded a specifically Romance tradition, in which the legal spirit of this (!) Trinity reached through the ratio scripta of the Middle Ages, the "spirit" of the laws of Montesquieu to the "folk spirit" of Savigny's and Mommsen's understanding of the state ("Mommsens Glaube" 2005, "The State Law" 2006, "Libanios' Speech" 2011).

In the last third of the 19th century, under the influence of the idealistic legal philosophy that processed the French Revolution, the interpretation of Roman law was captured by a legal theory committed to a presentistic will to legislate, with the prevailing model of Roman law as a system of order organizing freedom and cooperation in favor a phenomenon that always emerges anew in legislative acts and derives its legitimation from the perception of the respective life needs has been given up. This development culminated in the free law movement and its consequences, while Romance studies - which has now become a historical discipline - processed the same influences in interpolation studies. This method challenged all those ancient sources as spurious that contradicted the ideal of the ingenious case lawyer who focused on the respective decision-making task. The interpolation studies have essentially been adopted today, but the interpretation of Roman law as a theory-free casuistry has remained (“Von der Freirechtsbewegung” 1989, “Kant's Taube” 2011).

The undertaking to uncover the Hellenistic legal theories that are authoritative for the scientific foundation of Roman law, and the evidence that the two imperial law schools with their controversies go back to two philosophical receptions of the republic, which successively shaped Roman jurisprudence, one through faith a civil right wanted by a providential reason, the other through the skeptical conviction that the creation of such a civil right is a specifically humane task, are controversial in contemporary Romance studies (“The basic concepts of Romance studies” 1996, “Das Schiff des Theseus "2009," How should we imagine the Roman jurists? "2011," Corpus and Universitas "2013).

The rehabilitation of the rational content of Roman law also has consequences for the evaluation of the historical school of law: Savigny's system becomes visible in this way as an integrating processing of the same, which processes the Roman sources in a highly creative way. Jhering's legal thought (after his turn to purposeful thinking) is freed from the charge of Darwinism and recognizable as a theory of experience-based legal training that independently processes Roman legal thought ("History, Politics and Jurisprudence" 1985, "Jhering's theory of evolution" 1998, 2nd edition 2010, Chinese translation by Chun-Tao Lee 2010).

The proof that Roman law always tried to order the correct order of human conditions with systematic answers and that its culturally noticeable success is based on it, also allows historically based judgments about the applicable law as well as about the conditions after the second World War I made its re-establishment possible in Germany (“Das Privatrecht” 2000 [Chinese 2011], “The European Private Law Codification” 2008).

Okko Behrends' dissertation “The jury constitution. An Attempt at Reconstruction ”(1970) worked out the importance of the public-law provision of the volunteer jury. Central was the result (confirmed by the lex Irnitana in the meantime) that only the jury, who came from the "official" list of judges, was required to be admitted. The establishment of a trial with an elected juror, on the other hand, required the consent of the parties at the moment the trial was justified.

The habilitation thesis “The twelve-table process. Zur Geschichte des Obligationsrechts ”(1974) showed that in order to understand the“ civilization ”of credit obligations (which originally allowed liability access when a debt bondage falls due), it is necessary to look at contract, procedural and enforcement law together. Then one recognizes that the intention pursued by the Twelve Tables Act, not to let the debtor who does not pay when due, lose his role as a respected fellow citizen, has been realized simultaneously in all three phases through corresponding regulations.

The contribution to Franz Wieacker's 60th birthday "Ius und Ius civile" (1970) exposed the basic religious meaning of the Roman legal concept. " Ius " originally referred to the freedom of dispute and conflict that was considered necessary to secure the pax deum, also among people. In this sense Ius created freedom for human activity in relation to the divine believed to be effective in the world as well as towards fellow men.

The inaugural lecture "Institutional and Principle Thinking" from 1976 (published in 1978) was an access to the history of Roman jurisprudence under a comprehensive legal theory question. In Roman private law he exposed a methodological opposition with the opposition “Institute and Principle”, which was taken up again at the same time in Ronald Dworkin's “Jurisprudence” under the opposition “rule and principle”.

The publication in the news of the Göttingen Academy "The science of science in the Ius civile of Q. Mucius Scaevola" (1976) laid the basis for the more in-depth evidence of the "social natural law", which in the middle of the 2nd century the influence of Antipater (Antipater) of Tarsus was taken up by the Roman jurisprudence under the leadership of Publius Mucius Scaevola ( consul 133), the father of Quintus Mucius Scaevola ( consul 95), and because he was still in the life of Quintus Mucius in the classical jurisprudence since Servius emerged a fundamental opponent, the starting point for the controversies that continued in the imperial school dispute.

The contrast between two fundamentally different legal styles that was highlighted in the inaugural lecture was deepened in numerous works according to its legal-dogmatic and legal-philosophical side. For example, the cultural-anthropological (not providential theological-pantheistic) foundation of classical law was worked out and the fundamental difference in the formation of premises and forms of argument in the two jurisprudential traditions was shown (Le due giurisprudenze, in: “Scritti 'italiani'” 2009).

The work on the border system, which is part of the history of the settlement of Rome ("Grabberfeit und Grabfrevel" 1978, "Die Rechtsformen des Romanischen Handwerks" 1981) shows with particular clarity that the law needs to be implemented in a sustainable manner in order to be valid. Without the archaic border order established in the (Neolithic) logic of the Augural religion ("land sovereignty"), neither the imperial contrast between the soil of Italian law (which coincides with the extended ager Romanus ) and the provincial soil nor that for the development of freedom of disposal can be so Understand the central history of property liberation (“ Nexum facere ” 2013, “The Gardens” 2013).

The long-term collaboration with the Göttingen Academy Commission “The Function of the Law in Past and Present” culminated in the proof that the modern voluntaristic law of the omnipotent state, which claims to be the sole source of law, represents the form of secularization of the biblical law and, as such, that Law of the Roman legal tradition is opposed to, which is concretizing and advanced work on a legal system that has always arisen from the coexistence of people and is not constituted by law ("The Biblical Concept of Law" 2006). With regard to the Roman concept of law, it was worked out that the law could not create a constitution as it developed in Roman history and as it was simultaneously captured by various back-projected interpretations, because of its cooperative-contractual structure (“Die fraus legisl "1982," The Roman concept of law "1985/87," Law and Language "1995," The Contract Thought "2004). - With regard to the applicable law, the gain in regulatory power that the laws achieve if their provisions can be based on a good, conceptual order-creating dogmatics was made clear ("Das Bündnis" 1988).

The long-standing participation in the translation of the Corpus Iuris Civilis carried out by Okko Behrends together with Berthold Kupisch , Hans Hermann Seiler and Rolf Knütel led to some momentous observations: 1) A prominent position in the institutions made it possible to recognize that the teaching that the women limited to the mediation of a mere uterine relationship and only awarded the men the establishment of a consanguineous descent, on which the male sex a creative priority went back Stoa . The classical system centered around the artistic concept of “ persona ” (adopted by Justinian ), on the other hand, represented the equality of the sexes, following the skeptical academy, but adhered to several inequalities (mostly abolished by Justinian) as customary law, since these as mos maiorum In the context of skeptical legal theory, a justification from universal reason did not need to be justified (Institutional Translation, 2nd edition, 1997, p. 284 ff., “Gender Equality” 2013). - 2) The translation of the introductory constitutions provided an insight into the Roman law as a spiritual force, insofar as it is in the tradition of the Constantinian Turn of Justinian ( Codex Iustinianus and Corpus Iuris Civilis 2000, “The Biblical Concept of Law” 2006). - 3) A glance at the facsimile edition of the Florentina led to the perception of the "Greek-language portal" of the digests (perhaps deliberately designed by Tribonian ) , formed from the constitutio Δέδωκεν , the Greek "garnish" indices auctorum et titulorum and the above the relationship between Tribonian and Justinian reflective epigram. The parallel edition of constitutio Δέδωκεν and Tanta , which was carried out in previous editions and disregarded the manuscript findings , was therefore abandoned at Behrends’ suggestion.

Furthermore, Behrends dealt extensively with the historical school of law and its influence on the later period. In several works he dealt with Rudolf von Jhering (1818-1892), where he freed him from the accusation of social Darwinism and interpreted it as the originator of an evolutionary theory of law ("The Right Sense" 1986, "Rudolf von Jhering" 1993) and Friedrich Carl von Savigny (1779–1861), to whom he drew attention to the law as a “historically revealed spirit” (“Geschichte, Politik und Jurisprudenz” 1985). To Gustav Hugo (1764–1844) he exemplarily showed in the context of an appreciation associated with a small gibbon edition that the Roman sources of law also provide plenty of nourishment because of their inner tension because of a critical spirit (which simplifies Kant's transcendental criticism in the direction of a critically observing common sense) could ("Gustav Hugo" 1998).

With reference to Heinrich Heine , Behrends explained why jurisprudence and Roman law, although successfully studied, were alien to the poet and downright repulsive in the form prevailing at the time: the law that separated people for the sake of their freedom and constituted them in spheres of independence incompatible with the psychological, interpersonal differences that poetically neutralized the forces of his poetry that had an impact on the world (“Heine” 2007).

Finally, Okko Behrends also dealt with Carl Schmitt's “concrete order and design thinking”, the success of which was based on an annexation of the teachings of the free rights movement, which at that time had already been widely accepted, went unnoticed by the ingenious new formulation.

Fonts (selection)

  • The Roman jury constitution. An attempt at reconstruction (= Göttingen legal studies. 80). Schwartz, Göttingen 1970, ISBN 3-509-00518-X (at the same time: Göttingen, University, dissertation, 1967).
  • The Twelve Tables Trial. On the history of the Roman law of obligations (= Göttingen jurisprudential studies. 92). Schwartz, Göttingen 1974, ISBN 3-509-00747-6 (at the same time: Göttingen, Universität, habilitation paper, 1972).
  • The science teaching in civil law of Q. Mucius Scaevola pontifex (= news of the Academy of Sciences in Göttingen. Philological-Historical Class. 1976, No. 7, ISSN  0065-5287 ). Vandenhoeck & Ruprecht, Göttingen 1976.
  • Tiberius Gracchus and the jurists of his time (The Roman jurisprudence against the state crisis of the year 133 BC). In: Klaus Luig , Detlef Liebs (Hrsg.): The profile of the lawyer in the European tradition. Symposium on the occasion of Franz Wieacker's 70th birthday. Gremer, Ebelsbach 1980, ISBN 3-88212-018-5 , pp. 25-121.
  • The fraus legis. In contrast to wording and meaning in the Roman interpretation of the law (= Göttingen jurisprudential studies. 121). Schwartz, Göttingen 1982, ISBN 3-509-01289-5 .
  • The Roman concept of law and the principle of the separation of powers. In: Okko Behrends, Christoph Link (Hrsg.): On the Roman and modern concept of law (= Academy of Sciences in Göttingen. Symposium of the Commission The Function of Law in Past and Present. 1 = Treatises of the Academy of Sciences in Göttingen. Philological-historical Class. Series 3, No. 157). Vandenhoeck and Ruprecht, Göttingen 1987, ISBN 3-525-82439-4 , pp. 34-122.
  • as editor with Rolf Knütel , Berthold Kupisch and Hans Hermann Seiler : Corpus Iuris Civilis. Text and translation. On the basis of the text editions provided by Theodor Mommsen and Paul Krüger . Müller et al., Heidelberg 1990 – current. (5 volumes up to 2012).
  • Institute and principle. Settlement history basics, philosophical influences and the continued effect of the two republican concepts in the imperial law schools. Selected essays. Edited by Martin Avenarius , Rudolf Meyer-Pritzl and Cosima Möller . 2 volumes. Wallstein, Göttingen 2004, ISBN 3-89244-832-9 (collection of 19 articles).
  • Princeps legibus solutus. In: Rainer Grote, Ines Härtel, Karl-E. Hain, Thorsten I. Schmidt, Thomas Schmitz, Gunnar F. Schuppert, Christian Winterhoff (eds.): The order of freedom. Festschrift for Christian Starck on his seventieth birthday. Mohr Siebeck, Tübingen 2007, ISBN 978-3-16-149166-5 , pp. 3–20.
  • Detlef Liebs. In: Index. Quaderni Camerti di Studi Romanistici. 40, 2012, ISSN  0392-2391 , pp. 780-794.
  • Nexum facere et nectere (Un essai méthodique). In: Monique Clavel-Lévêque, Fatima Ouachour, Isabelle Pimouguet-Pédarros (eds.): Hommes, cultures et paysages de l'Antiquité à la période moderne (= Enquêtes et documents. 44). Presses universitaires de Rennes, Rennes 2013, ISBN 978-2-7535-2143-8 , pp. 123-149.
  • Custom and Reason: Gender Equality and Difference in Classical Roman Law. In: Stephan Meder , Christoph-Eric Mecke (Eds.): Family Law in Early Women's Rights Debates. Western Europe and the United States in the nineteenth and early twentieth centuries (= legal history and gender research. 14). Böhlau, Cologne et al. 2013, ISBN 978-3-412-21052-6 , pp. 321–372.

A complete list of publications (up to 2009) can be found in: Martin Avenarius, Rudolf Meyer-Pritzl, Cosima Möller (eds.): Ars iuris. Festschrift for Okko Behrends on his 70th birthday. Wallstein, Göttingen 2009, ISBN 978-3-8353-0420-8 , pp. 643-659.

Web links

Individual evidence

  1. ↑ In addition review at perlentaucher.de. Retrieved December 28, 2012 .